Citation Nr: 0712743
Decision Date: 04/30/07 Archive Date: 05/08/07
DOCKET NO. 04-12 612 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Atlanta, Georgia
THE ISSUES
1. Entitlement to a rating in excess of 20 percent for a
right knee small meniscus tear, including a rating in excess
of 10 percent for right knee arthritis.
2. Entitlement to a rating in excess of 10 percent for
pseudofolliculitis barbae.
3. Entitlement to a compensable rating for chin scars.
REPRESENTATION
Veteran represented by: Georgia Department of Veterans
Services
ATTORNEY FOR THE BOARD
Matthew W. Blackwelder, Associate Counsel
INTRODUCTION
The veteran served on active duty from December 1981 to
December 2001.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a September 2004 rating decision.
FINDINGS OF FACT
1. The evidence shows that the veteran has range of motion
in his right knee from at least 0 to 105 degrees.
2. The evidence fails to show any right knee instability.
3. X-rays show degenerative joint disease in the right knee.
4. The evidence fails to show that pseudofolliculitis barbae
causes constant exudation or itching, extensive lesions, or
marked disfigurement.
5. The evidence fails to show that the veteran's
pseudofolliculitis barbae affects either 5 percent of his
entire body, or 5 percent of the exposed areas of his body.
6. The evidence fails to show that the veteran uses
intermittent systemic therapy to treat his pseudofolliculitis
barbae.
7. The medical evidence fails to show that the veteran's
chin scars are moderately disfiguring.
9. The medical evidence fails to show that the veteran's
chin scars have any characteristics of disfigurement.
CONCLUSIONS OF LAW
1. Criteria for ratings in excess of 20 percent for a
meniscus tear of the right knee instability and 10 percent
for degenerative arthritis of the right knee have not been
met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2,
4.7, 4.71a, Diagnostic Codes (DCs) 5010, 5257, 5258, 5260,
5261 (2006).
2. Criteria for a rating in excess of 10 percent for
pseudofolliculitis barbae have not been met. 38 U.S.C.A.
§ 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.118, DCs
7800, 7806 (as in effect prior to and since August 30, 2002).
3. Criteria for a compensable rating for chin scars have not
been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1,
4.2, 4.7, 4.118, DC 7800 (as in effect prior to and since
August 30, 2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Increased Rating
Disability ratings are determined by applying a schedule of
ratings that is based on average impairment of earning
capacity. Separate diagnostic codes identify the various
disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each
disability must be viewed in relation to its history and the
limitation of activity imposed by the disabling condition
should be emphasized. 38 C.F.R. § 4.1. Examination reports
are to be interpreted in light of the whole recorded history,
and each disability must be considered from the point of view
of the appellant working or seeking work. 38 C.F.R. § 4.2.
Where there is a question as to which of two disability
evaluations shall be applied, the higher evaluation is to be
assigned if the disability picture more nearly approximates
the criteria required for that rating. Otherwise, the lower
rating is to be assigned. 38 C.F.R. § 4.7.
Right knee
The veteran is currently rated at 20 percent for a right knee
injury under 38 C.F.R. § 4.71a, DC 5258. Under this code, a
20 percent rating is assigned for dislocated semilunar
cartilage manifested by frequent episodes of "locking,"
pain, and effusion into the joint; and the 20 percent rating
which is currently assigned is the maximum schedular rating
available under this rating criteria.
The veteran has also been assigned a 10 percent rating for
degenerative arthritis under 38 C.F.R. § 4.71a, DC 5010.
Under this rating code, traumatic arthritis, when
substantiated by X-rays, will be rated on the basis of
limitation of motion under the appropriate diagnostic codes
for the specific joint or joints involved (DC 5200 etc.).
When however, the limitation of motion of the specific joint
or joints involved is noncompensable under the appropriate
diagnostic codes, a rating of 10 percent is for application
for each such major joint or group of minor joints affected
by limitation of motion, to be combined, not added under DC
5003. Limitation of motion must be objectively confirmed by
findings such as swelling, muscle spasm, or satisfactory
evidence of painful motion. 38 C.F.R. § 4.71a, DC 5010, Note
(1).
Limitation of motion of the knees is rated under 38 C.F.R.
§ 4.71, DCs 5260 & 5261. Under DC 5260, a 10 percent rating
is assigned when flexion is limited to 45 degrees, and a 20
percent rating is assigned when flexion is limited to 30
degrees. Under DC 5261, a 10 percent rating is assigned when
extension of the leg is limited to 10 degrees, while a 20
percent rating is assigned when extension is limited to 15
degrees. Normal range of motion of the knee is from 0
degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71a,
Plate II.
Service medical records from shortly before the veteran's
discharge show that the veteran complained of right knee
pain. An MRI in November 2001 showed tears of the medial and
lateral menisci. In December 2001, the veteran had range of
motion in his right knee from 0 to 105 degrees.
The veteran indicated in July 2006 that he had not been
treated for his knee since 2001. In October 2006, the
veteran underwent a VA examination at which he indicated that
he had daily knee pain which he treats with ibuprofen.
Nevertheless, the veteran indicated that he exercises daily;
he has not had any surgery on his knee; and he does not use
any assistive devices, such as a walker, cane, or crutches.
The veteran serves as a teacher and as a ROTC instructor
where he has difficulty doing sit-ups, pushups, and running
drills with his students. The veteran also has trouble
climbing stairs. Range of motion testing revealed that the
veteran had motion in his right knee from 0 to 125 degrees.
While there was grinding and pain with palpation, the
veteran's right knee was stable to valgus and varus stresses.
Following repetitive motion, the veteran had increased pain,
but there was no fatigue, weakness, or lack of endurance
noted; and no additional limitation of motion was caused by
repetitive motion. X-rays of the veteran's right knee showed
degenerative joint disease.
As the veteran was shown to have at least 105 degrees of
flexion and no limitation of extension in his right knee both
times range of motion was measured, the veteran does not have
compensable limitation of motion. Nevertheless, the veteran
was noted to have pain throughout range of motion testing.
As such, the veteran is entitled to the 10 percent rating he
was assigned, but no more. See 38 C.F.R. § 4.45, 4.71a, DC
5010.
The Board has considered whether a higher disability
evaluation is warranted on the basis of functional loss due
to pain or due to weakness, fatigability, incoordination, or
pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45.
See also DeLuca v. Brown, 8 Vet. App. 202 (1995). At the
most recent examination, the veteran had no fatigue,
weakness, or lack of endurance following repetitive motion.
While the veteran did have pain on motion, this was covered
by the rating that was assigned. As such, an additional
disability rating is not available based on weakness,
fatigability, incoordination, or pain on movement.
If an exceptional case arises where ratings based on the
statutory schedules are found to be inadequate, consideration
of an "extra-schedular" evaluation commensurate with the
average earning capacity impairment due exclusively to the
service-connected disability or disabilities will be made. 38
C.F.R. § 3.321(b)(1) (2006). The governing norm in these
exceptional cases is a finding that the case presents such an
exceptional or unusual disability picture with such related
factors as marked interference with employment or frequent
periods of hospitalization as to render impractical the
application of the regular schedular standards. Id. While
the veteran is receiving the highest rating under DC 5258, no
evidence has been presented to show that the veteran's case
presents any exceptional circumstances that would merit an
extraschedular rating.
Accordingly, ratings in excess of 20 percent for a torn
meniscus in the right knee and 10 percent for degenerative
joint disease in the right knee are denied.
Pseudofolliculitis barbae
The veteran is currently assigned a 10 percent rating for his
pseudofolliculitis barbae under 38 C.F.R. § 4.118, DC 7806.
During the pendency of this appeal, the regulations for
rating disabilities of the skin were revised effective August
30, 2002. 67 Fed. Reg. 49,596 (July 31, 2002). The Board
will consider all applicable versions of the rating criteria,
but the new criteria may only be applied as of their
effective date (i.e., at no earlier date). See VAOPGCPREC 3-
2000.
Under the criteria of former DC 7806 (as in effect prior to
August 30, 2002), a 10 percent rating is assigned for
pseudofolliculitis barbae when it causes exfoliation,
exudation, or itching involving an exposed surface or
extensive area. A 30 percent rating requires constant
exudation or itching, extensive lesions, or marked
disfigurement.
At a VA examination in June 2001, the veteran was diagnosed
with cosmetic pseudofolliculitis barbae, and the examiner
noted generally darkened scarring on the veteran's face.
The veteran indicated in July 2006 that he had not been
treated for his pseudofolliculitis barbae since his 2001 VA
examination. He indicated that the problem had been with him
since he first joined the military, and despite many
different types of skin treatments, tenderness and itching
were still prevalent and cuts and nicks were continuously
causing dark and bumpy skin in the shaving area of his face.
In October 2006, a VA examiner took several photographs of
the veteran's face, which clearly show the presence of
pseudofolliculitis barbae, but which do not show marked
disfigurement of the face or extensive lesions. The examiner
also specifically noted that the veteran's pseudofolliculitis
barbae had not caused any scarring or disfigurement.
While the veteran indicated that his pseudofolliculitis
barbae itches, there is no evidence that the
pseudofolliculitis barbae causes constant exudation or
itching, and the photographs and opinion by the VA examiner
fail to demonstrate that the pseudofolliculitis barbae has
been productive of either extensive lesions, or marked
disfigurement.
As such, a rating in excess of 10 percent is not available
for pseudofolliculitis barbae under the old rating criteria.
Under the criteria of the revised DC 7806 (effective on and
after August 30, 2002), a 10 percent rating is assigned for
pseudofolliculitis barbae when it affects at least 5 percent,
but less than 20 percent, of the entire body, or when it
affects at least 5 percent, but less than 20 percent, of
exposed areas affected; while a 20 percent rating is also
assigned if treatment of the pseudofolliculitis barbae
requires intermittent systemic therapy, such as
corticosteroids or other immunosuppressive drugs, for a total
duration of less than 6 weeks during the past 12-month
period.
At the veteran's October 2006 VA examination, the veteran
indicated that he is not on any prescription or over-the-
counter medication for his pseudofolliculitis barbae. The
examiner indicated that the veteran's pseudofolliculitis
barbae covered less than 5 percent of his exposed areas, and
less than 5 percent of his entire body area. The examiner
also failed to detect any scarring.
Based on the 2006 examination, it is clear that the veteran
fails to meet the criteria for a rating in excess of 10
percent for his pseudofolliculitis barbae, as the condition
affects less than 5 percent of the veteran's entire body, and
less than 5 percent of the exposed areas of his body. The
evidence also fails to show that the veteran uses any
intermittent systemic therapy to treat his pseudofolliculitis
barbae. Accordingly, a rating in excess of 10 percent is not
available for the veteran's pseudofolliculitis barbae under
the new criteria.
The Board has also considered whether a rating is available
for any potential scarring caused by the pseudofolliculitis
barbae. However, the examiner in October 2006 indicated that
no scarring was present as a result of the pseudofolliculitis
barbae.
Accordingly, a rating in excess of 10 percent for
pseudofolliculitis barbae is denied.
Chin Scars
The veteran is currently assigned a noncompensable rating for
his chin scars. During the pendency of this appeal, the
regulations for rating disabilities of the skin were revised
effective August 30, 2002. 67 Fed. Reg. 49,596 (July 31,
2002). The Board will consider all applicable versions of
the rating criteria, but the new criteria may only be applied
as of their effective date (i.e., at no earlier date). See
VAOPGCPREC 3-2000.
Under the old 38 C.F.R. § 4.118, DC 7800 (2001), scars that
disfigured the head, face or neck were assigned a
noncompensable rating if the disfigurement was slight, and a
10 percent rating if the disfigurement was moderate.
Under the revised criteria, a 10 percent rating is assigned
for a scar on the head, face or neck that has one
characteristic of disfigurement. 38 C.F.R. § 4.118, DC 7800
(2006).
The 8 characteristics of disfigurement are: 1) Scar 5 or more
inches (13 or more cm.) in length; 2) scar at least one-
quarter inch (0.6 cm.) wide at widest part; 3) surface
contour of scar elevated or depressed on palpation; 4) scar
adherent to underlying tissue; 5) skin hypo-or hyper-
pigmented in an area exceeding six square inches (39 sq.
cm.); 6) skin texture abnormal (irregular, atrophic, shiny,
scaly, etc.) in an area exceeding six square inches (39 sq.
cm.); 7) underlying soft tissue missing in an area exceeding
six square inches (39 sq. cm.); and 8) skin indurated and
inflexible in an area exceeding six square inches (39 sq.
cm.).
At a VA examination in June 2001, the veteran indicated that
during service he was playing sports and got hit under the
chin on two occasions, causing lacerations. No stitches were
necessary. The examiner found that the veteran had a one-
half inch laceration scar that had healed well without any
keloid formation, pain, or tenderness.
The veteran indicated in July 2006 that his chin scars had
not been examined by a doctor since 2001. He complained that
the chin scars caused difficulty shaving as a result of the
pseudofolliculitis barbae, noting that he cut the scarred
skin weekly while shaving due to the raised portion of skin.
At a VA examination in October 2006, the veteran indicated
that his chin scars seldom itch and are not tender. The
examiner noted three scars on the veteran's chin. One is
vertical and measures 1.5 cm long by .4 cm wide. The second
scar is also vertical and measures 1.2 cm long and .2 cm
wide. The third scar is horizontal and measures 2 cm long,
and .2 cm wide. The scars were nontender; there was no
erythema or keloid formation; no abnormality of texture; no
hypopigmentation or hyperpigmentation; there was no
limitation of motion or function; there was no elevation or
depression upon palpation; there was no inflammation,
induration, or edema; and there was no ulceration or
instability.
Color photographs of the veteran's face were also taken and
associated with the claims file. However, while they show
the scars on the veteran's chin, the photographs appear to be
consistent with the examiner's findings at the 2006 VA
examination.
Under the old criteria, the medical evidence fails to show
that the chin scars are more than slightly disfiguring. Each
scar is very small, and well healed, and without pain or
tenderness. While the scars may cause increased difficulty
shaving, this fact alone does not cause the scars to be
considered moderately disfiguring.
Under the revised criteria, the medical evidence, including
the photographs, fails to show that the scars have any
characteristics of disfigurement. None of the scars are
either 13 cm long or .6 cm wide; the surface contour of the
scars is neither elevated nor depressed on palpation; none of
the scars are adherent to underlying tissue; and none of the
scars cover an area that is at least 39 sq. cm.
Accordingly, a compensable rating for the veteran's chin
scars is denied.
II. Duties to Notify and Assist
Under applicable criteria, VA has certain notice and
assistance obligations to claimants. See 38 U.S.C.A.
§§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a),
3.159, 3.326(a).
Notice must be provided to a claimant before the initial
unfavorable agency of original jurisdiction (AOJ) decision on
a claim for VA benefits and must: (1) inform the claimant
about the information and evidence not of record that is
necessary to substantiate the claim; (2) inform the claimant
about the information and evidence that VA will seek to
provide; (3) inform the claimant about the information and
evidence the claimant is expected to provide; and (4) request
or tell the claimant to provide any evidence in the
claimant's possession that pertains to the claim. Pelegrini
v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II).
In the present case, required notice was completed by a
letter dated in June 2006. By this, and by previous letters,
and the statement of the case, the veteran was informed of
all four elements required by the Pelegrini II Court as
stated above.
The Board finds that any defect concerning the timing of the
notice requirement was harmless error. Although the notice
provided to the veteran was not given prior to the first
adjudication of the claim, the veteran has been provided with
every opportunity to submit evidence and argument in support
of his claim and ample time to respond to VA notices. See
Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on
other grounds, 444 F.3d 1328 (Fed. Cir. 2006).
Service medical records have been obtained, and the veteran
was provided with several VA examinations (the reports of
which have been associated with the claims file).
Additionally, the veteran was scheduled to testify at a
hearing before the Board, but he canceled the hearing.
VA has satisfied its duties to notify and assist, and
additional development efforts would serve no useful purpose.
See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991);
Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In light of
the denial of the veteran's claims, no disability rating or
effective date will be assigned, so there can be no
possibility of any prejudice to the veteran under the holding
in Dingess v. Nicholson, 19 Vet. App. 473 (2006). Because
VA's duties to notify and assist have been met, there is no
prejudice to the veteran in adjudicating this appeal.
ORDER
A rating in excess of 20 percent for a right knee small
meniscus tear, and a rating in excess of 10 percent for right
knee arthritis is denied.
A rating in excess of 10 percent for pseudofolliculitis
barbae is denied.
A compensable rating for chin scars is denied.
____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs